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Whitley v. Bowersox

United States District Court, E.D. Missouri, Eastern Division

May 7, 2019

D'ANDRE WHITLEY, Petitioner,



         This matter is before the Court on the petition of D'Andre Whitley for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         I. Procedural Background

         Petitioner D'Andre Whitley is presently incarcerated at the South Central Correctional Center pursuant to the judgment and sentence of the Circuit Court of Saint Louis City. On February 29, 2012, a jury convicted petitioner of one count of first-degree assault (Count I), in violation of § 565.050;[1] one count of first-degree burglary (Count III), in violation of § 569.160; and two counts of armed criminal action (Counts II and IV). The jury found petitioner not guilty of an additional charge of first-degree assault and the associated armed criminal action charge (Counts VII and VIII).[2] Verdicts [Doc. # 9-4 at 73-78].[3] On April 13, 2012, the trial court sentenced petitioner as a persistent offender to consecutive terms imprisonment for 15 years on Count I and 5 years on Count II, and concurrent terms of 15 years on Count III and 5 years on Count IV, for a total sentence of 20 years.[4] Judgment [Doc. # 9-4 at 87-91]. The Missouri Court of Appeals affirmed petitioner's convictions and sentences on direct appeal on September 17, 2013. State v. Whitley, No. ED98812 (September 17, 2013) (“State v. Whitley”) [Doc. # 9-5]. Petitioner's motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 was denied following an evidentiary hearing. Findings of Fact & Conc. of Law (FFCL) [Doc. # 9-6 at 21-31]. On November 17, 2015, the Missouri Court of Appeals affirmed the denial of post-conviction relief. Whitley v. State, No. ED102458 (Nov. 17, 2015) (“Whitley v. State”) [Doc. # 9-9]. Petitioner timely filed this petition for relief pursuant to 28 U.S.C. § 2254 on September 28, 2016.

         II. Factual Background

         The jury heard testimony that, on the evening of October 22, 2010, petitioner was at a nightclub with several friends, including Kelvin Nelson, Robert Turner, and Russell Vincent. The friends reconvened at Russell Vincent's home in St. Louis City where they were shooting dice for money and taunting each other. Nelson and Turner testified that the group often taunted or argued with one another and that it was not a cause for concern. See Trial Transcript [Doc. # 21-1 at 22 & 110]. At some point, petitioner got angry and started to leave the house. Nelson caught up with petitioner on the porch and asked him where he was going. The two men started “tussling” with one another and they fell off the front porch. Nelson, who was much larger than petitioner, sat on petitioner and tried to get him to calm down. Id. at 25-26. When petitioner finally got to his feet, he told Nelson, “You're a dead nigger tonight, ” before getting in his car and driving off. Nelson testified that he thought petitioner would go home and cool off and that would be the end of the incident. Id. at 26-27.

         Robert Turner saw the altercation between Nelson and petitioner. Id. at 110-12. He helped petitioner get to his feet and told him to calm down. He heard petitioner threaten Nelson before he left, but did not think much of it. Turner was on the front porch about ten minutes later when petitioner's car came speeding around the corner and stopped in front of the house. Id. at 113-16. Petitioner got out of the car and fired a shot at Turner, who ran into the house and locked the front door behind him. Turner yelled out that petitioner was back and that he was shooting. Id. at 116-17. Turner testified that the front door swung “clean open” and petitioner entered, firing his weapon. Id. at 118-20.

         Nelson was in the hallway when petitioner entered the house. He saw petitioner holding a pistol with an extended clip. Id. at 29-30. Petitioner raised the pistol and began firing at Nelson, who ran for the kitchen. Petitioner followed Nelson into the kitchen and fired several shots, hitting Nelson in the arm and stomach. Id. at 32-33. Petitioner then ran off through the front door. Nelson suffered a broken arm and collapsed lung. Id. at 34.

         Investigating officer Harvey Graef testified that he recovered a total of eighteen shell casings on the front porch and in the house. Id. at 167. There was a bullet hole in the door jamb, but Officer Graef could not say whether it was caused in this crime. Id. at 159, 170-71.

         Petitioner testified at trial that he was not with the group that evening. Trial Transcript [Doc. # 9-1 at 181, 192]. In response to questions about why his friends would identify him as the shooter, he testified that he was more successful in the drug trade than they were. Id. at 182. Plaintiff believed that, when Nelson was shot by an unknown person, the group saw an opportunity to eliminate him as a competitor. Id. at 194.

         III. Legal Standards

         When a claim has been adjudicated on the merits in state court proceedings, habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), only if the state court's determination:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

         A state court's decision is “contrary to” clearly established law if “it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). “The state court need not cite or even be aware of the governing Supreme Court cases, ‘so long as neither the reasoning nor the result of the state-court decision contradicts them.'” Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004) (citing Early v. Packer, 537 U.S. 3, 8 (2002)). “In the ‘contrary to' analysis of the state court's decision, [the federal court's] focus is on the result and any reasoning that the court may have given; the absence of reasoning is not a barrier to a denial of relief.” Id.

         A decision involves an “unreasonable application” of clearly established law if “the state court applies [the Supreme Court's] precedents to the facts in an objectively unreasonable manner, ” Payton, 544 U.S. at 141; Williams v. Taylor, 529 U.S. 362, 405 (2000), or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 406. “Federal habeas relief is warranted only when the refusal was ...

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